Please note: The TMG has been replaced by the DDG. You can find an overview here.
Please note: The TMG has been replaced by the DDG. Please note: The TMG has been replaced by the DDG, but the decision likely remains relevant. An overview can be found here.
§ 5(1) of the Telemedia Act (TMG) regulates the minimum information that the imprint of a service provider’s website on the internet must provide:
(1) Service providers shall keep the following information easily recognisable, directly accessible and permanently available for commercial telemedia that are generally offered for a fee:
The name and address of the business, where they are established; for legal entities, also the legal form, the authorized representative, and, if information about the company’s capital is provided, the share or nominal capital, as well as, if not all contributions to be made in cash have been paid, the total amount of outstanding contributions.
Information that allows quick electronic contact and direct communication, including the email address.
If the service is provided or offered as part of an activity that requires official authorization, details of the relevant supervisory authority.
The commercial register, association register, partnership register, or cooperative register in which they are registered, and the corresponding registration number.
If the service is provided or offered in the exercise of a profession within the meaning of Article 1(d) of Council Directive 89/48/EEC of December 21, 1988, concerning a general system for the recognition of higher education diplomas that require at least three years of professional training (OJ EC No. L 19, p. 16), or within the meaning of Article 1(f) of Council Directive 92/51/EEC of June 18, 1992, concerning a second general system for the recognition of professional qualifications to supplement Directive 89/48/EEC (OJ EC No. L 209, p. 25, 1995 No. L 17, p. 20), as last amended by Commission Directive 97/38/EC of June 20, 1997 (OJ EC No. L 184, p. 31), information about
a) The chamber to which the service providers belong,
b) The legal professional title and the state in which the professional title was awarded,
c) The designation of the professional regulations and how they can be accessed.
If they possess a VAT identification number under § 27a of the VAT Act or an economic identification number under § 139c of the Fiscal Code, this number must be provided.
In the case of public limited companies, partnerships limited by shares, and limited liability companies that are in liquidation or winding-up, this must also be indicated.
In particular, § 5(1) sentence 1 TMG has repeatedly been the subject of court rulings, which stipulates that the information must be “easily recognizable, immediately accessible, and constantly available.”
The imprint is „easily recognizable“ if the link to the imprint is visible to the website visitor without extensive searching. The visitor should not be forced to unnecessarily scroll through the website or change their screen resolution.
The imprint is „immediately accessible“ if it can be reached with a maximum of two clicks from any page on the website. If the link to the imprint is on the homepage, the homepage should be no more than one click away from any subpage. Ideally, each subpage should have a direct link to the imprint.
The imprint is „constantly available“ if the required information of § 5(1) TMG is provided in the same language as the rest of the website, is printable, and can be accessed by visitors without using any additional software.
Another important question, besides the design of the imprint, is when an imprint must be made available.
It is often forgotten by website operators that social media profiles of service providers within the meaning of § 5 TMG also require an imprint.
In the case mentioned above, the Regional Court of Aschaffenburg had to decide, within the framework of interim legal protection, whether the operator of an information portal had properly provided the mandatory information under § 5 TMG on their Facebook profile.
Facts of the Case:
The applicant operated an online information portal that provided updates, events, cultural tips, and industry information for a region in Germany.
The applicant operated an online information portal that provided updates, events, cultural tips, and industry information for a region in Germany.
The respondent also operated an information portal for the same region, offering similar information on news, events, culture, and entertainment tips.
Both parties, in addition to their main websites, also maintained profiles on Facebook.
In the legal dispute, the applicant claimed that, during a certain period, the respondent had not provided the required information under § 5 TMG on their Facebook profile. In particular, the required information was not easily recognizable, immediately accessible, or constantly available.
The parties were competitors within the meaning of § 2(1)(3) of the Unfair Competition Act (UWG). The respondent’s behavior was therefore considered anti-competitive.
Due to the lack of information, the respondent was warned and eventually sued.
The respondent argued that they had complied with the required information under § 5 TMG, even during the specified period. The necessary information was easily recognizable, immediately accessible, and constantly available.
In particular, the key information, such as the name, address, email, phone number, and URL, had been provided on their Facebook profile. Only regarding the legal form, the visitor needed to click further.
Decision of the Regional Court of Aschaffenburg
Decision of the Aschaffenburg Regional Court The Aschaffenburg Regional Court considered the respondent’s actions unfair.
The court agreed with the applicant’s argument and ruled that the respondent acted unfairly under § 3 in conjunction with § 4(11) of the UWG.
According to the court, the information obligations under § 5 TMG serve consumer protection and transparency of commercial telemedia services, thus constituting market conduct rules under § 4(11) UWG.
The respondent should have provided its own provider identification.
In this respect, users of "social media" such as Facebook accounts would also have to have their own provider identifier if they were used for marketing purposes and not just for purely private use.
Thus, users of „social media“ platforms like Facebook accounts must also provide their own provider identification when these are used for marketing purposes and not solely for private use.
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
If you need legal advice, feel free to call us at 0221 – 80187670 or email us at info@mth-partner.de.
Lawyers in Cologne advise and represent you in competition law.
